Roberts Hands a Poisoned Chalice to the President
What in the world was Chief Justice Roberts trying to do by voting with the liberals on ObamaCare? Conservative opinion is all over the map, but conservative talk show hosts were clear, as I drove south from liberal Seattle to liberal Ashland, Oregon, on June 28, 2012, that the ball was in the voters' court.
Whatever you think of Roberts' decision, his message was unequivocal. If you don't like ObamaCare then you'd better vote it down in November. In this he gives conservatives real clarity.
If the Supreme Court conservatives had voted down ObamaCare by a vote of 5 to 4 the liberals would not have accepted it, any more than the pro-life movement accepts Roe v. Wade. There was only one way in 2012 to make a Supreme Court decision to invalidate ObamaCare stick, and that would have been for Justice Kagan to join the conservative majority in a 6-3 decision. Why Kagan? Look at the other three liberals: Ginsburg was a liberal ACLU lawyer; Breyer was a Kennedy staffer; Sotomayor an affirmative action pick -- liberal hacks every one. But Elena Kagan was dean of Harvard Law School and Solicitor General; she is the liberal educated elite. Her vote to overturn would have been an admission from the educated establishment that ObamaCare was unjust and wrong.
Good luck with that. So the only way to make liberals accept a repeal of ObamaCare is by the brute force of political power, the mandate of the voters expressed at the ballot box, just as Chief Justice wrote in the majority decision.
Chief Justice Roberts did his level best "nudge" the voters. First of all, he ruled that ObamaCare is constitutional because it is really a tax. This means that Mitt Romney and a dozen SuperPACs can tell the voters that President Obama has raised taxes on the middle class. Secondly, Roberts ruled that the federal government cannot penalize states that don't accept expanded Medicaid.
These two poison pills hand the president a poisoned chalice. "Tell it like it is," Howard Cosell used to say: a tax is a tax. Forget using Medicaid as a bludgeon to force the states to enroll the near poor.
The central weakness of ObamaCare is the same as the HillaryCare of 18 years ago. It does nothing for the middle class. The middle class already has health insurance. The Obamis tried to surround this truth with a bodyguard of lies about everyone being able to keep their present health insurance and with the canard that a penalty is not a tax. Now Chief Justice Roberts has insisted on telling the American people the truth.
If Americans vote against President Obama in November it will be the third election that liberals have lost on the health care issue. Perhaps liberals will finally get the point.
It is, of course, grossly unfair that the liberals can create unjust law with the help of the Supreme Court but conservatives can't use it to repeal injustice. But life is unfair. Liberals get to use the Supreme Court as their pet pony because they are the educated elite and the aristocratic branch of government is naturally the branch of the educated elite. Conservatives merely add up to a sub-culture allied with movements of resistance on abortion, guns, and taxes.
The generation-long conservative strategy for turning the Supreme Court from a liberal rubber stamp into a bench with respect for the Constitution as written is a good one. But it cannot make liberals abandon their program of political domination and what James C. Scott in Seeing Like a State calls "internal colonialism," the domestic liberal equivalent of the old imperialist program of using raw power to bring the benefits of civilization to the backward natives whether they like it or not.
This means that Chief Justice Roberts is right. There is no short cut to reforming the welfare state and ending its reign of injustice and oppression. It must be accomplished through the expression of the American popular will.
Ultimately conservatives must still persuade the liberal educated elite that their once noble program has turned into a cesspit of injustice and cruelty that visits its harshest cruelties on the people it is supposed to help, the folks in Charles Murray's underclass Fishtown, the single mothers on welfare and the men that have dropped out of the work force. But intelligent people don't abandon their closed system on their own. They will only be persuaded by the ruin of their hopes and the destruction of their power. That is what elections are for.
Today conservatives are disappointed. The Supreme Court failed to wave a magic wand over ObamaCare and make it disappear in a pinch of fairy dust. But it gave us a bracing dose of reality and did us the favor of handing President Obama a poisoned chalice to drink from. Tomorrow conservatives must return to the fight.